Monday, November 19, 2018

Popular Sovereignty, the Executive, Congress, and SCOTUS: Battle for Supremacy (Part II)

The battle for power and supremacy between the President, Congress, and SCOTUS has raged since our founding. Most people think that SCOTUS has the final word on a law’s Constitutionality. That is not entirely true because there are avenues that Congress can take to change a Court ruling such as amending the Constitution. For instance, five amendments to the Constitution were made to overturn prior Court decisions: The Eleventh Amendment overturned Chisholm v. Georgia (1793), the Thirteenth and Fourteenth Amendments overturned Dred Scott v. Sanford (1857), the Sixteenth Amendment overturned Pollock v. Farmers’ Loan and Trust (1895), and the Twenty-sixth Amendment overturned Oregon v. Mitchell (1970). Obviously, Congress won these battles, but Chisholm and Pollock were rightly decided (in my minority view). Chisholm was a South Carolina resident who sued Georgia to claim unpaid debts from the Revolutionary War. The Eleventh Amendment provided states sovereign immunity from lawsuits coming from citizens in other states. This changed the meaning of the Constitution from providing ultimate sovereignty to the citizens of America but instead to the state governments. Chisholm was never paid. Governments should repay their debts! The Sixteenth Amendment passed the income tax which the Court found unconstitutional in the Pollock case. This changed the balance of dual sovereignty between the States and Federal Government to one where ultimate sovereignty resided solely in the Federal Government by providing them with coercive power over the states. Therefore, the Eleventh and Sixteenth Amendments changed the sovereign hierarchy in the Constitution from: the people (ultimate) and State and Federal Government’s (equal but secondary) to: the Federal Government (ultimate), State governments (Secondary), and the people (last). These two amendments changed our government as one being derived from “We the People” to one controlled by “The Federal Government”. The Twenty-sixth Amendment made the voting age 18 universally in every state for both national and local elections. Of course, the overturning of Dred Scott could not happen fast enough. Dred Scott was the single biggest injustice in SCOTUS history.

Congress can also overrule any Dormant Commerce Clause decisions by the Court. These cases involve a Court decision over a state statute that Congress has yet to legislate using the Commerce Clause. The earliest such case was the 1852 case between Pennsylvania v. Wheeling and Belmont Bridge Company. The Court ruled the height of the Wheeling bridge across the Ohio river was too low and disrupted commerce since many commercial boats could not pass under such a low bridge. A few months after the decision Congress passed a law declaring the bridge to be of lawful height. This act did not go over well with many of the Justices who were angered and thought Congress had no right to overrule a High Court decision. Another example involves Leisy v. Hardin (1890) where the Court ruled that a State could not prohibit the sale and consumption of liquor, but again, within 6 months Congress passed legislation to overrule this case. One final example involves the United States v. South-Eastern Underwriters Association (1944) where the Court ruled that insurance sales where subject to regulation via the Commerce Clause (overruled Paul v. Virginia, 1869). Within a year, Congress passed the McCarran-Ferguson Act (1945) to overrule this decision. For this reason, many modern Justices do not like ruling on Dormant Commerce Clause cases since Congress can overrule the result.

The legislative veto is another interesting example because Congress simply decided not to comply with a Supreme Court ruling. Congress does not have veto power but in the past, they have attached this instrument to legislation providing for either one or both Houses of Congress the power to veto a particular Executive act. The Supreme Court held that the one or two house legislative veto was unconstitutional in INS v. Chadha (1983). But this has not stopped Congress from using legislative vetoes by Congressional committees to check Executive Power. If the legislative veto by either House is unconstitutional then it should intuitively follow that the legislative veto by any House committee would also be unconstitutional. So, the question that begs to be answered is why does the Executive continue to allow legislative vetoes by Congress? First, Congress will find inventive or creative ways to garner some form of a legislative veto regardless as to what the Court and the President do to stop it. Secondly, the Executive can also benefit from a similar plan. For example, Congress provided FDR, for instance, with legislative duties that were checked by a legislative veto. This obviously provided the Executive with broader legislative powers. A more egregious example of non-compliance is when President Lincoln suspended a writ of habeas corpus during the Civil War and simply ignored Chief Justice Taney’s demands in Ex parte Merryman to end the practice. Taney and the Court were damaged goods after the Dred Scott decision and SCOTUS during the Civil War era was probably at its weakest point in American history.

The Exceptions Clause (Article 3, Section 2, Clause 2) of the Constitution is another way Congress can control the power of the Court. The clause states: “In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.” However, Congress has had very little success using this clause in U.S. history. In Ex parte McCardle (1869) during Civil War Reconstruction Congress passed a law which withdrew the Court’s jurisdiction from reviewing suspended writs of habeas corpus in the militarily controlled South. McCardle had been jailed without a writ of habeas corpus after being arrested for publishing articles which incited violence and insurrection. The Court dismissed the case for lack of jurisdiction upholding Congress’s authority under the Exceptions Clause. Chief Justice Chase said, “the power to make exceptions to appellate jurisdiction of this court is given by express words.” In United States v. Klein (1872) the Court correctly denied Congress the power to apply the Exceptions Clause to the Executive Branch. In Klein, Congress failed to limit the President’s pardon powers through the Exclusions Clause. There have been some unsuccessful modern attempts to apply the Exclusions Clause. Liberals in the 1980s attempted to deny appellate jurisdiction to the Court over social issues. Hence, social issues would have been decided by the state courts and those decisions could not be appealed to federal courts. This is exactly what should be happening, but the reason liberals pursued this route was solely to block any future cases against abortion which may dilute the Roe v. Wade (1973) decision. If liberals had succeeded using the Exceptions Clause for social issues then they would have protected abortion (abortion has been diluted: Scrutiny in Casey v. Planned Parenthood and funding in Webster v. Reproductive Health Services), but they would have lost opportunities over gay issues. One reason the Exceptions Clause has not been used very successfully is because Congress is limited as to what they can deny jurisdiction without violating individual, corporate, and state rights to due process of the law.

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